Galan v. State

• Citation: 177 S.W. 124
• Decision Date: 19 May 1915
• Docket Number: (No. 3507.)
• Parties: GALAN v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

177 S.W. 124

GALAN v. STATE.

(No. 3507.)

Court of Criminal Appeals of Texas.

May 19, 1915.

Dissenting Opinion June 8, 1915.

Appeal from District Court, Atascosa County; F. G. Chambliss, Judge.

Pasqual Galan was convicted of murder, and he appeals. Affirmed.

Geo. M. Martin, of Jourdanton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was indicted for the murder of Felix Sanchez, alleged to have been committed on March 14, 1914. He was tried in December, 1914, and convicted of murder. The lowest penalty, five years in the penitentiary, was assessed against him.

In his first bill of exceptions he complains that the court erred in refusing to sustain his objections to Wm. Blunt as a juror, and in holding Blunt qualified, causing him to peremptorily challenge him, and thereby forcing W. A. Reece, an objectionable juror, upon him; he having exhausted his challenges before Reece was presented. The bill in no way shows how or why Reece was objectionable to him, nor that he was in any way even claimed to be disqualified. The bill shows his cause for challenging Blunt was that upon his voir dire examination he declared his hearing was not good, and unless very favorably situated in the jury box he would not be able to hear the testimony of the witnesses from the witness stand, and at times there was a ringing in his ears, which at times affected his hearing quite materially; that he was 59 years old, and never served as a juror but once before. In approving this bill the court qualified it by stating:

"That the juror seemed to readily hear and understand any and all questions asked by the court, and the juror stated that if he was placed near the witnesses he could hear and understand what they (the witnesses) might state, and the court stated to counsel that in case said juror was selected to serve on this jury he would be placed near the witness stand and in a favored position. The juror, spoken to by the court in an ordinary tone of voice, seemed to understand as well as the ordinary man."

This bill shows no error. Oates v. State, 67 Tex. Cr. R. 488, 149 S. W. 1194, and cases therein cited.

His next bill, No. 2, and his sixth, will be considered together. They are on the same subject and present the same question. They complain of the court's action in permitting to be introduced in evidence his voluntary statement made by him at his examining trial before R. A. Terry, the justice of the peace, for the reason, stated in No. 2, that said statement made by him was in Spanish, he having no knowledge of the English language, and the same was interpreted into English by an interpreter whose knowledge of English was very imperfect, and that said interpreter testified under oath, when his qualifications as interpreter was tested before the court, that the voluntary statement as submitted to him did not speak the truth, in that the appellant is made to say that he said to the state's witness Chon Sanchez at or near the stump where the difficulty began "that his (Chon Sanchez's) mother could take out the stump," whereas, in fact, he stated that Chon Sanchez told him that "his (the defendant's) mother could take out the stump"; that defendant was not represented by counsel at the examining trial; and that he imperfectly understood the interpreter. In his sixth the reason stated is that it was not shown that he had been properly warned in the language which he understood, and said statement was not what defendant really said to the party writing down the same, it having been shown to be incorrect.

The court, in approving his bill No. 2, did so with this qualification:

"The defendant introduced the party who did the interpreting in the examining court, and on the examining trial of defendant, and he testified in defendant's favor, and to some extent changed the meaning of record as stated by defendant in his voluntary statement, but it was not clearly shown that the interpreter was incompetent or misunderstood the statement of defendant as made at the time of the examining trial, but only stated his (the interpreter's) recollection of the proceeding as he remembered same, it (the examining trial) having occurred about a year, or at least many months, prior to this final trial."

In approving bill No. 6 the court did so with this qualification:

"The contention on the part of defendant was that he did not understand the interpretation as made, which contention was not established to the satisfaction of the court, and hence the foregoing conclusions inserted in this bill by counsel are not approved. The remainder of the bill is approved, and is ordered filed as a part of the record in this case."

The statement which was introduced in evidence is not copied nor purported to be in either of said bills, nor is the substance of it given in either or both. Hence neither bill presents the question in such a way that we can determine that the action of the court was in any way erroneous. It will be seen that appellant's objections are not approved as statements of facts by the judge, but the reverse of that seems to be true. Neither of the bills nor both show that the statement was not admissible. That the interpreter or whoever wrote out the statement as given by the interpreter might have made a mistake in one particular would not of itself render the statement inadmissible. The jury would hear the whole testimony as to any claimed mistake, and might disregard the statement in the particular shown to be a mistake, if so, yet all the balance of the statement might clearly be admissible. It might be that the evidence on the subject, as a whole, in connection with the statement, might make it appropriate for the court to instruct the jury as to what they could or could not consider; but no such complaint was made on the trial or now.

Omitting only the heading of appellant's bill No. 3, which merely gives the style and number of the cause and the court and term, it is:

"Be it remembered that upon the trial of the above styled and numbered cause J. H. Winn, sheriff of Atascosa county, a witness for the state, was, at the request of the jury, and after the said jury had retired to consider of their verdict, permitted, over the objection of the defendant, to testify in response to questions of the foreman of the jury as to the distance where the hat was found from the Sanchez camp, if possible, the court failing to instruct the said witness to make his statement in the language used by him in his examination as nearly as he could, and in response to said question of said foreman the said witness proceeded to give testimony not previously given by him, and thereupon said witness testified as follows: Question by the foreman of the jury: `We want to know the distance from where the hat was found to the Sanchez camp?' Answer: `It was about 150 yards; that's it.' Question: `Did you step it off or measure it?' Answer: `I guess it 50 or about 50 or 60 yards. Guesses at it, and part of it I measured. Found it beyond a cord of wood, about 50 or 60 yards; 50 or 60 yards from the Galan-Sanchez camp, I mean.' To all of which said testimony the defendant then and there objected, for the reason that it was inadmissible for the witness to do more than repeat the language as nearly as he could, the evidence previously given by him, and because his testimony was new matter, and because the court had failed to instruct the said witness to make his statement to the jury in the language used by him in his examination as nearly as he could, because the said witness had testified in the case, and was only recalled at the request of the jury, and the court overruled the said objections of the defendant, and permitted the witness to give the above testimony, and the defendant then and there excepted to all of said testimony, and now here tenders this, his bill of exceptions No. 3, and prays that the same may be signed and made a part of the record in this case, which is accordingly done, with the additional statement that witness stated the distance above mentioned to be 150 or 160 yards from where hat was found to Sanchez camp.

                                     "F. G. Chambliss
                          "Judge 56th Jud. Dist. of Texas."
                

This bill was filed March 13, 1915.

The rules for the requisites of bills of exceptions in criminal cases have been so long and so well established that it seems it should be useless to again state them. They have been clearly and distinctly stated by a long and uniform line of decisions of this court. Judge White, so long a judge and presiding judge of this court, in his Ann. C. C. P. in 1900, states them, and collated the authorities up to that date in sections 807 to 862, inclusive, and in section 1123. In a large number of cases, too numerous to collate, but notably in James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112, and Best v. State, 164 S. W. 997, recently attention has been called to these rules, and the said sections of Judge White's Annotated Procedure cited.

It occurs to us that no one could seriously contend that the above-copied bill complies with these rules or any of them to such an extent as this court can intelligently tell therefrom that any material or reversible error was committed by the trial judge. We stated specifically some of these rules in Best v. State, supra, and will here again copy them:

"(1) The allegations thereof should be full and explicit, so that the matters presented to the court on appeal for revision may be comprehended without recourse to inferences.

"(2) They should be so explicit as to enable the court on appeal to fully understand all the facts upon which the correctness or error of the rulings depend; otherwise they will not be considered.

"(3) It must set out the proceedings in the court below sufficiently to enable the court on appeal to know that an error has been committed. It must...